Discrimination is a serious issue for employers. It can lead to disputes, lawsuits and even forced business sales. Forced business sale, substantial fines and the disgrace of being ousted from the National Basketball Association (NBA) are the challenges Clippers owner Donald Sterling faced over racial comments he made in a taped conversation with his girlfriend, V. Stiviano.

CNN reports this is not the first time discrimination has been a issue for Mr. Sterling. In an earlier lawsuit, Sterling paid millions to settle a federal case where African American and Hispanic claimants accused him of excluding them from his rental properties.

Initially, Sterling agreed to have his wife, Shelly Sterling, handle negotiations to sell the Clippers. Various bidders came forward, such as CEOs of Microsoft and Oracle, Oprah Winfrey and film producer, David Geffen. Recently Forbes magazine reported that after negotiations were in progress, Sterling recanted on the agreement to allow Shelly to negotiate the sale. Subsequently, his estranged wife Shelly had Sterling, who is 80 years old, declared mentally incapacitated, which allowed her to control the trust. Recently, she announced the sale of the team to former Microsoft CEO Steve Ballmer for $2 billion, which is quadruple the highest price ever paid for an NBA team.

It has been decades since Sterling bought the Clippers in 1981 for $13.5 million. The family will lose millions of dollars through capital gains taxes from the sale, which would have been avoided by having the team ownership pass through Sterling’s trust to his estate upon his death. A stepped up basis (current market value at time of death, not time of purchase) is used for estate valuations.

After the sale announcement, Mr. Sterling filed a lawsuit, suing the NBA for damages. However, Shelly Sterling informed parties that the Sterling trust will indemnify the NBA for lawsuits being brought by Sterling.

Needless to say, most business owners do not have millions at stake, but the importance of adhering to anti-discrimination policies does not lack emphasis through this example, even for billionaires.

Restaurant owners are subject to numerous regulations they must comply with and as various cases are litigated, rulings establish new precedents that can change how the industry does business. Maintaining a viable restaurant in today's world often requires due diligence from a legal perspective. The best way to stay on top of a changing legal landscape is to work closely with an employment law attorney who can keep you apprised.

Several recent cases are significant for the restaurant industry in how it manages tipped employees:

Matthew Scott v. Souper Salad is a class action case brought against LNC Ventures LLC, the owner of the Souper Salad chain, which has restaurants in 45 locations. The plaintiff alleged the company violated the Fair Labor Standards Act (FLSA) by requiring tipped employees to spend more than 20 percent of their time doing non-tipped employees' work. Tasks included cleaning, stocking supplies, sorting silverware and food preparation. Tipped employees work for lower rates than minimum wage employees and the lawsuit alleged these tasks prevented them from making fair wages. The plaintiff sought compensation for all hours worked that were less than minimum wage, interest, liquidated and punitive damages and attorneys' fees. The case settled out of court under a confidential agreement.

Flood et al. vs. Carlton Restaurants et al is a lawsuit brought by several employees against Carlson Restaurants Inc., which owns TGI Friday's. The plaintiff is seeking certification as a class for TGI Friday's workers nationwide. Some of the FLSA allegations claimed in the lawsuit are that restaurant managers require off-the-clock work before the restaurant opens and after it closes that is not reflected on employee time cards and records. In addition, the plaintiff alleges that in violation of the FLSA, tipped employees have to spend significant time performing tasks that do not allow them to earn tips, such as food preparation, stocking inventory and cleaning. The case is being tried in the New York Southern District Court.

If you are a business owner with questions or concerns about wage and hours issues, contact Stephen Hans & Associates, an employment litigation law firm that has served clients in the Long Island City and New York area since 1979.

Small businesses often feel like a family. You’re a small group, perhaps you socialize outside of work or have a company baseball team where everybody gets along great. The idea that one of your employees might sue you never enters your mind—until one of them does. And as far as the law is concerned, no matter how much you like your employees, they are still your employees. And the law has ‘protections’ in place for employees. When you run a small business, you need take steps to protect yourself and your company.

The ABCs of employee lawsuits

Most employee lawsuits stem from behavior on the job and by their very nature they can be difficult to defend. Discrimination, harassment and retaliation make up the lion’s share of suits filed against employers. The U.S. Equal Employment Opportunity Commission (EEOC) protects employees if they are a member of a “protected class” such as race, religion, gender, age, and disability. And what many employers do not know is that the EEOC can prosecute on behalf of claimants—which means that your employee may not even need to have an attorney in order to file a suit against you.

An employee must show four things in order to file a discrimination or harassment complaint with the EEOC:

That he/she is a member of a protected class

That he/she is qualified and performing in a satisfactory manner

That he/she suffered an adverse employment action because he/she was a member of a protected class.

The good news is that just because the court allows the suit to proceed doesn’t mean that you have lost. It simply means that you now have the burden to prove that the employment action you took was for legitimate business reasons. This is where documentation really counts, such as written warnings, performance reviews, time cards, evaluations, disciplinary actions, etc.

If you have an employee handbook which outlines your policies and procedures it will likely be your most valuable asset in an employee lawsuit. Your handbook should contain policies on:

Discrimination, harassment and retaliation

Any disciplinary processes

The procedure to take in making complaints

Such policies should also include an open door policy for reporting all complaints of discrimination, harassment and retaliation. It’s also wise to have employee training in your anti-discrimination policies.

Best practices for protecting against employee lawsuits

To help reduce and avoid preventable employee lawsuits, the following is a good guide to use:

Hire an experienced employment attorney. Even though you have a small business and you need to control costs, downloading template policies from the Internet will not protect you. An experienced attorney understands the federal, state, and local laws that apply to employment and he or she can keep you in compliance with these laws.

A comprehensive employee handbook. If your handbook does not cover discrimination, harassment and retaliation, then it is incomplete. Your attorney can help you draft a proper handbook that protects both you and your employees.

Know employment law. Even if you have an attorney, you would be well-advised to become familiar with employment laws yourself. Ignorance of the law is never an effective defense.

Document everything. Every action taken with employees should be documented. Just as you would keep comprehensive book keeping records, so should you keep comprehensive employee records. And since former employees may also have standing to sue you, it’s wise to maintain records for at least ten years.

Don’t assume you are too small a fish to fry. Small business owners can wrongly believe that since they have few assets no one will bother suing them. However, that type of assumption can land you in court. In some cases, you may only need an annual revenue of $500,000 and as few as four employees to be legally liable.

Unfortunately, employee lawsuits are not diminishing. Employees sue their employers and former employers in the hundreds of thousands every year. To ensure you are protected talk to an experienced NY business litigation attorney about your current situation. Your attorney can help you determine how best approach your employee dispute.

Although there are thousands of employment discrimination cases filed every year, they are not easy for the plaintiff to win. The plaintiff must persuade juries that their employer made an employment decision based on a personal bias against race, religion, sex, age, etc. However, juries are much more receptive to a claim that a manager, supervisor or employer treated an employee unfairly after he or she made an accusation of discrimination or harassment.

Because jurors often see the act of striking back at complaining employees as a natural reaction and human nature, the employer is often the one who suffers in such cases. Employees who file retaliation claims and win are frequently awarded punitive damages—sometimes numbering in the millions. Therefore, a retaliation claim is not something an employer should take lightly.

Reduce your exposure to employee retaliation claims

While it is unlikely you can completely avoid retaliation claims, there are steps you can take that can reduce your risk of having such claims filed against you.

Implement policies against retaliation. You should already have anti-discrimination and harassment policies in place. If your existing policies don’t cover retaliation, then you should update your current policies to include a strong non-retaliation policy. This policy should assure your employees that they will not suffer reprisal for filing complaints. The policy should also contain the process for reporting any retaliation that might occur.

Train managers and supervisors. Implementing non-retaliation policies is a good start but you should also provide training to your supervisors and managers. These employees need to understand what non-retaliation means and how to apply the policy correctly. Provide training on what constitutes retaliation and how to respond to a retaliation complaint. Further, all training should be documented in the event you need to show the steps you have taken to prevent unlawful retaliation.

Do not treat claimants differently. You should never treat an employee who has filed a complaint like an outcast or pariah. Such treatment only validates the employee’s claim of unlawful conduct and renders your policies invalid. Instead, be proactive and communicate with the claimant. Provide him or her with a copy of your non-discrimination policy and offer to help them if they experience problems. And you should follow up to ensure there have been no further problems or incidents. All of these interactions with the claimant should also be documented and kept on file.

Review subsequent employment actions. Any employment actions taken after the complaint that affect the claimant should be reviewed before you make any changes. Such as change of supervisors, transfers to different departments, change of schedule, etc. Your personnel department, legal adviser and/or management personnel should review any proposed actions/changes to ensure that it does not constitute retaliation.

To discuss retaliation claims contact a NY business litigation attorney

When facing a retaliation claim, keep a cool head and talk to an experienced NY business litigation attorney about your situation. Your attorney can help you determine the best approach to take in your circumstances.

According to the U.S. Equal Employment Opportunity Commission (EEOC), in 2012, 38 percent of all EEOC claims were for retaliation.

The reason retaliation claims have become so popular in recent years is because case law and legislative developments have:

Broadened the field of people protected against retaliation

Relaxed the burden for establishing retaliation

Expanded the damages available to a plaintiff in such a claim

Further, retaliation claims have a much higher success rate than discrimination claims.

The basics of a retaliation claim

In essence, a retaliation claim is that the employer ‘took revenge’ or retaliated for an action the employee took that was legally within the scope of employment law.

For an employee to establish an unlawful retaliation claim, he or she must show that:

They took part in a protected activity (such as file a claim)

Their employer took an unfavorable action against them

There was a connection between the protected activity and the unfavorable employer action.

For an employee to establish protected activity they must show the participation in the activity was protected by employment law such as:

Filing a claim

Testifying

Assisting/taking part in an investigation

Opposing an unlawful employment practice

The Supreme Court and Congress have broadened coverage and damages

A number of U.S. Supreme Court rulings have expanded anti-retaliation protection to cover things such as:

Broadening the term “employee” to include former employees

Allowing oral complaints to have a comparable weight as filed complaints

The “scope of the anti-retaliation provision extends beyond workplace-related or employment-related retaliatory acts and harm”

Further, legislation passed by Congress has expanded the range of damages and expanded anti-retaliation protections, including compensatory and punitive damages and protections for a wider range of individuals.

Retaliation is easier to believe than discrimination

The other side of this coin is that it is generally easier to believe that a person could retaliate against an accusation of wrongdoing rather than just blindly discriminate against someone because of their race, religion or age. Individuals who are tasked with fact finding are after all human beings and often make a connection between an accusation and a reaction of retaliation. And chances are, plaintiffs in retaliation claims are on counting on that.

A retaliation claim can be tricky for a variety of reason but maybe moreso because of that intangible human factor. People generally believe that others seek revenge and often have personal experiences of such occurrences. This alone can make a juror sympathetic toward a plaintiff. If you face a retaliation claim you should speak to an experienced NY business litigation attorney immediately. A skillful attorney can help you determine the legal remedies available in your situation.

In recent years, thousands of companies have felt the impact of a slumped economy, increased costs and regulations. These conditions have forced employers to cut costs, reduce hours and downsize staffs. Consequently, employee lawsuits and job discrimination charges have risen. In fact, the U.S. Equal Employment Opportunity Commission (EEOC) reported that in both 2010 and 2011, there were a 100,000 workplace discrimination complaints filed.

After all the time and energy you have put into your business, it can be very stressful to receive notice that you are being sued by a former employee. It is easy to imagine all of your blood, sweat and tears circling the drain and leaving you with nothing. However, rather than panicking, you should take the following steps:

What to do:

Weigh your options calmly and determine the possible damages if the suit/complaint is decided in your employee’s favor.

Keep and maintain all records and other evidence that may relate to the case

Have you IT Department maintain all electronic records so that they are ready if a case proceeds

Consult your insurance policy for clauses that cover legal costs

Talk to your broker about any special riders to your policy that may help defray legal costs

Review your supplier and manufacturer contracts to determine if you are indemnified against legal liability.

What not to do:

Do not panic and assume all is lost

Do not destroy records or any documentation that may be considered evidence

Do not discuss the case with anyone who is not directly involved or with anyone who may be potentially a witness, except as advised by your attorney

Do not contact your former employee about his or her claim

Do not call your former employee to try to settle the case yourself

Do not contact your former employee to tell them off or to vent about feelings of betrayal

Discuss employee claims with an experienced NY business litigation attorney

The fact is that just being named in a suit or complaint does not mean you will lose your company or that you will even end up in court. Plaintiffs often name several defendants in an attempt to hit all the bases. Your company may only be named because if it is in a related field or thought to be involved. If so, your attorney may be able to get your company dismissed from the suit. Employee disputes and claims can be nerve-wracking but a NY business litigation attorney can help you determine the best strategy to take in your situation.

The U.S. Equal Employment Opportunity Commission (EEOC) reported it obtained a record $372.1 million in monetary relief for victims of private sector employment discrimination in year ending 2013. This amount is nearly seven million more than was recovered in 2012 and is the highest amount of financial compensation ever recovered in the agency’s history.

The EEOC is the federal agency that enforces federal laws prohibiting employment discrimination, and obtains monetary and non-monetary compensation for individuals who have been discriminated against by employers through:

• Administrative enforcement

• Settlements

• Conciliations (alternative dispute resolution)

What this means for employers

While according to its report, the EEOC received 14,000 fewer filings the fact that they recovered the record amounts this past year may not bode well for employers. In our politically correct society, discrimination can be construed by what most people may consider minor incidents. And unfortunately, with each passing day more regulations, laws and rules are passed that make ordinary behavior something sinister or questionable. More than ever, employers must remain ever vigilant in their awareness of and compliance to the new rules.

In order to protect your company from unnecessary complaints you should:

• Always give honest employee evaluations. Employees with the responsibility of providing evaluations must do so honestly and resist the urge to ‘be nice’ because they do not want to hurt someone’s feelings. If a complaint should arise for poor work performance, the employee evaluations should back that statement up by showing that it was drawn from honest employee evaluations.

• Provide anti-discrimination/harassment training. Your anti-discrimination policies must be clearly written and disseminated to all employees. And you must take e reasonable steps to ensure everyone from management to entry level employees know, understand and can use the complaint process. Annual or bi-annual training on these matters can help achieve this end.

• Do not allow retaliation. When one employee complains about another it is natural for the accused employee to want to retaliate against the accuser. You must not tolerate this for any reason. Conduct a non-biased investigation and do everything possible to rectify the matter without letting it get out of hand with warring employees escalating the situation.

• Be fair and consistent. You will open your company up to scrutiny and liability if you treat one employee differently from another. Your policies should treat all employees fairly and consistently.

Talk to an experienced NY employment law attorney about employee disputes

Running a business and keeping your staff happy and productive can be a formidable task. However, it goes with the territory of having a successful business. An experienced attorney can help you develop company policies that will help provide a safe and productive work environment for your employees and protect you from the risk of litigation. For more information about how an employment law attorney can help you with employee disputes or any other business matter, contact us online today.

The U.S. Equal Employment Opportunity Commission (EEOC) has filed another suit for employment discrimination which could end up costing the employer hundreds of thousands of dollars. The suit filed by the EEOC against Chesapeake Health System is on behalf of a former employee who claims disability discrimination and retaliation when she sought federal relief.

The civil suit alleges the health care company "failed to provide a reasonable accommodation, fired, and later refused to rehire a pulmonary function technologist because of her disability and in retaliation for her requesting an accommodation and complaining about discrimination," according to a news release issued Friday by the EEOC.

The former employee, Deborah Ropiski was:

A long-time employee

Sought transfers which were denied

Sought a rehire for a vacant position which was denied

Had consistent positive performance reports

Received positive patient feedback

And given the former employee’s efforts, the outcome of the lawsuit may turn in her favor.

Employment discrimination carries serious penalties

Under anti-discrimination laws, an employer who is found liable for employment discrimination can be made to pay damages and provide injunctive relief to the injured party and penalties may include:

Back pay (compensation for lost wages due to discrimination)

Front pay (money to compensate the employee for future wages)

Injunctive relief (reinstatement or promotion)

Court costs, and legal fees

Out of pocket costs

Depending on the case, the plaintiff may also be entitled to damages for pain and suffering as well as punitive damages.

Don’t end up in court—talk to an experienced NY employment law attorney

NY employment defense law attorney today to learn the legal remedies available in your situation.

An employee can be fired by an employer for any reason or no reason, providing it does not violate anti-discrimination laws.

Does an employee have a right to a copy of their personnel file?

Typically, unless state or local law state otherwise, an employee has no right to his or her employee file and an employer does not have to provide it.

Are employers required to provide health insurance, sick leave, or vacation pay to his or her employees?

Although many employers offer such benefits, an employer is not automatically required to provide them. However, the Affordable Healthcare Act does affect healthcare benefit requirements for larger companies with 50 employees or more.

Can an employer eliminate employee benefits?

Benefits such as vacation pay that has already been earned cannot be taken away from an employee – however, an employer can change its benefits policy going forward at any time.

Is an employer required to give severance pay to a fired employee?

Unless an employer has an established policy or practice of giving severance pay upon termination, it is not required.

Get your questions answered by a NY employment law attorney

Running a business and managing employees can be a challenge. And new laws and regulations seem to go into effect everyday. To avoid penalties and stay in compliance you should talk to an experienced attorney. To get any questions you may have about employment matters answered, contact an experienced NY employment defense attorney today.

American Idol faces a discrimination lawsuit filed by 10 black former contestants who were disqualified from the show. The plaintiffs claim they were disqualified for reasons other than singing, including criminal history, and were given the “right to sue” by the Equal Employment Opportunity Commission (EEOC), allowing the lawsuit they filed in July to move forward.

The lawsuit alleges that over the course of a 10-year period, Idol producers engaged in a pattern of racial discrimination by using the arrest history of black male contestants as a reason for disqualification. The suit also claims that 31 percent of all black Idol semi-finalists were disqualified for reasons unrelated to their singing ability. And further alleges that white and non-black contestants were not subjected to the same standard for disqualification.

Proving the claims

In order to prove that American Idol discriminated against the plaintiffs after asking about arrest histories, the young men must first prove that they were employees of the show. This is a significant hurdle to overcome for the plaintiffs because asking an employee or a job applicant about previous arrests is a violation of California law. Additionally, the plaintiffs must also prove that the discrimination took place within 300 days of filing their lawsuit.

Independent contractors and employees are not the same

Treating an employee as an independent contractor, can get you in hot water and subject you to possible lawsuits and heavy fines. In order to prevent future liability, as a business owner it is important to understand the difference between an independent contractor and an employee:

An independent contractor:

• Operates under a business name

• Has their own employees

• Maintains a separate business checking account

• Advertises business services

• Invoices for work completed

• Has more than one client

• Has own tools and sets own hours

• Keeps business records

An Employee:

• Performs duties dictated or controlled by others

• Is given training for work to be done

• Works for only one employer

Talk to a NY employment law attorney about your employment issues today

Running a business is a challenge in today’s world and employers can often make unintended mistakes for which they pay dearly. Treating an employee as an independent contractor is just one of the many things that can put you and your business at risk. To discuss your employee issues, contract needs or other employment matters, contact an experienced NY labor & employment law attorney today.